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Court upholds Berner's conviction for Delta accident that killed girl

Carol Berner was convicted and sentenced to 30 months in prison last year in the 2008 crash that killed four-year-old Alexa Middelaer and seriously injured her aunt. She launched an appeal of her conviction, which will be heard on Thursday.

Photograph by: Delta Optimist
, File Photo

VANCOUVER - The B.C. Court of Appeal has upheld the conviction of Carol Ann Berner for causing the death of four-year-old Alexa Middelaer, who was struck and killed by a vehicle at the side of a Ladner road while feeding a horse in May 2008.

Berner was found guilty in 2010 of two counts of dangerous driving causing death and bodily harm and two counts of impaired driving causing death and bodily harm after the crash that killed Alexa and injured her aunt, Daphne Johanson.

She was sentenced to two-and-a-half years behind bars, and banned from driving for five years. She was granted pending the result of her appeal.

On appeal, Berner's lawyer, David Tarnow, argued Delta police allowed Berner's vehicle to be destroyed before she had been charged. The vehicle was destroyed seven months after the accident, while the investigation was ongoing. He said it was the duty of the police to preserve evidence in serious cases. He said Berner should be acquitted or a new trial ordered.

Crown counsel John Gordon said the issue of the destroyed car was a "red herring." He argued that the brakes were found to be in working order and had only been applied one second before Berner's vehicle slammed into a parked car then hit Alexa and her aunt.

Tarnow also argued that police failed to give Berner a charter warning about her rights before asking her to take a roadside sobriety test, which she subsequently failed, at the scene of the accident. Tarnow said that Berner was placed in the back of a locked police car by the first Delta police officer to arrive on the scene, and while she was in the car was asked if she'd been drinking. Berner said she admitted she'd had two glass of wine some time previous but was showing no signs of impairment. It was only after she had failed the roadside test that she was given the standard warning. If the court found Berner should have received the charter warning before giving any statement to police then the evidence she gave to police about drinking two drinks three hours earlier could have been ruled inadmissible.

Carol Berner was convicted and sentenced to 30 months in prison last year in the 2008 crash that killed four-year-old Alexa Middelaer and seriously injured her aunt. She launched an appeal of her conviction, which will be heard on Thursday.